Why President Bush Might Not Want to Pardon His Administration: An International Angle
posted by Brian Kalt
I have been dismissive of the idea that President Bush will pardon administration officials (and maybe himself, contrary to my post here) involved in the policy surrounding the mistreatment of detainees in the current conflict. I had filed this concern in the same place as the preposterous notion that President Bush would cancel the election in November, or the inauguration on January 20.
After listening to Professor Phillipe Sands on NPR’s Fresh Air this afternoon, though, I am starting to think that the President might need to think more seriously about the pardons. Sands made a case for investigations, both by the Obama Administration and international authorities. I am not qualified to weigh in here with my opinion on the relative merits of Sands’s argument, but listening to him, it did strike me that prosecutions–especially international ones–are more of a possibility than I had previously thought.
Somewhat counterintuitively, though, I think that the increased possibility of prosecution should make it less likely that President Bush will pardon Dick Cheney, David Addington, John Yoo, or himself. It seems to me that international human-rights activists will be in a much more punitive mood than the Obama administration will be. However, it would be much easier for Bush officials to stiff-arm international efforts if the possibility of some sort of domestic process–which could have more legitimacy and would avoid sovereignty concerns–remained open. But pardons would close that possibility. The international activists would be able to say that there is no alternative left for them but to proceed in international tribunals.
If President Bush does not expect any prosecutions at all, or expects them only domestically, then there is no issue. But if his pursuers will be both foreign and domestic, it would make sense for him to try to keep his home court advantage, so to speak.
Another permutation–impeachment of Bush Administration officials after they have left office–looms as well. If President Bush pardons people, or if the Obama Administration is disinclined to take up the case, I have argued (here) that Congress can still step in and take some action. Such action would, admittedly, be limited, but it would be much more than nothing, and it too could slow down international proceedings somewhat. (I’ll post more on “late impeachment” in the next few days.)
Again, I’m not saying that President Bush should pardon anyone, or that anyone is guilty. I just think that pardons could weaken his position, in a way that I didn’t realize a few hours ago.
January 7, 2009 at 1:17 pm
Posted in: Constitutional Law, Criminal Law, Criminal Procedure, Current Events, International & Comparative Law, Politics
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Responses (1)
A.W. - January 8, 2009 at 4:54 pm
An international tribunal has no right to try Mr. Bush, period. If some overseas kidnappers attempt to put him in the Hague any patriot should demand immediate release or else. We are not a dictatorship and we don’t need anyone’s help in resolving our legal disputes.
And, btw, it would be illigitimate substantively, becuase he has committed no crime. The fact that even now the Democrats won’t impeach him is proof that they know in their hearts that he did nothing wrong.
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